Suspension Of Disbelief: Divorce, Drama And The Burden of Proof 

Published on 31 October, 2019 | Sarah Hewitt

It is testament to the power of drama that many people’s ideas of divorce seem shaped by what they’ve seen at the cinema or on television.

Many individuals who come to myself and my colleagues for advice are, frankly, surprised that the vast majority of marriage break-ups are rather amicable and shorn of intrigue.

They expect to have to engage in the sort of subterfuge seen in the likes of ‘The Wars Of The Roses’ or even ‘Doctor Foster’ in an effort to acquire the kind of proof which they reckon they need to advance or defend divorce petitions.

Whilst it’s easy to disavow people of that position, I would argue that the fact that it exists at all is not exactly helpful to begin with.

The topic is something which I was reminded of when reading of a man from Derbyshire who recently appeared in court on charges of assault and criminal damage.

According to news reports, he had “rugby tackled” his wife in an attempt to take her mobile ‘phone, believing that it contained evidence which might enable him to secure the divorce which he wanted but she had refused to agree to (https://www.dailyrecord.co.uk/news/uk-world-news/raging-husband-rugby-tackled-wife-20654015).

The simple fact is that it’s not necessarily imperative to have evidence in order to initiate divorce proceedings.

In fact, as the latest figures published by the Office for National Statistics (ONS) make clear, almost half of the 101,337 divorces in England and Wales during 2017 were on granted on the grounds of unreasonable behaviour (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce).

These petitions require the petitioning spouse to provide examples of their partner’s conduct which might be sufficient to satisfy a court that their marriage has broken down irretrievably.

Behaviour-related divorces can cover a number of different sorts of behaviour, including extra-marital affairs (which are described as “improper relationships” for the purpose of such petitions).

Given that a specific adultery case does require the kind of proof which is sometimes hard to get hold of, it offers assistance to those who feel that the substance of their marriage has been undermined by infidelity.

It’s one reason why divorce on the grounds of adultery has more than halved over the course of the last decade.

I’m not saying that evidence may not be required at all during the divorce process but the pursuit of what might be considered as supporting proof for such an argument can create – even criminal – complications of its own.

For that, we don’t just need to take into account the example of the case in Derbyshire which got me thinking of the subject.

Back in July 2010, in fact, the Court of Appeal made a notable ruling in favour of businessman Vivian Imerman and his ex-wife, Lisa Tchenguiz.

Mr Imerman had shared an office with Ms Tchenguiz’ brothers who, believing that he might try to conceal evidence which might be of use to her in their divorce, accessed his computer and downloaded – wait for it – some 2.5 million documents.

The volume of material and the fact that the case featured entrepreneurs who were notable in their own right was not the only reason why the Court’s intervention was of consequence.

It decided that “the notion that a husband cannot enjoy rights of confidence as against his wife in respect of information which would otherwise be confidential as against her if they were not married, seems to us to be simply unsustainable” (https://www.bailii.org/ew/cases/EWCA/Civ/2010/908.html).

That reversed the previously accepted practice which had persisted since a 1992 divorce (Hildebrand v Hildebrand) and featured a husband who obtained and then copied documents kept in his wife’s private files.

As one judge, Lord Justice Ward, later observed in another watershed divorce (White v White) actions similar to those of Mr Hildebrand were not penalised even though “the family courts… do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents”.

Whilst the Imerman case centred on material thought of possible use in reaching a financial settlement, the principle – how trying to find evidence to back up a petition now carried a risk – still applies across the whole of the divorce proceedings.

With the introduction of a parliamentary Bill heralding ‘no-fault’ divorce (https://services.parliament.uk/bills/2019-20/divorcedissolutionandseparation.html), such efforts have also become largely redundant.

The legislation would mean that spouses like Tini Owens – who was last year frustrated in her efforts to persuade the Supreme Court that she should be allowed to divorce her husband, Hugh, after almost 40 years of marriage (https://www.dailymail.co.uk/news/article-5992637/Worcestershire-Tini-Owens-forced-stay-married-husband-Hugh-losing-Supreme-Court-case.html) – would not need to go to extreme lengths to prove her argument.

Two years ago, Hall Brown reported how the sort of divorce detective work familiar to viewers of certain Hollywood classics was falling out of fashion, having not only been overtaken by the realities of the Imerman-Tchenguiz case but technology too (https://www.dailymail.co.uk/news/article-4957470/Private-detectives-no-longer-needed-break-industry.html).

Whether through the use of professionals or somewhat more self-reliant methods, chasing proof can be unnecessary and actually result in exacerbating tensions.

There’s a good reason why the movie industry’s most popular period for private eyes was in the day’s of black and white.